Matthew Whitaker, the new acting attorney general, has said that states have the right to nullify federal law, but that they need the political courage to do so.
Whitaker, whom President Donald Trump announced as acting attorney general on Wednesday after he fired Jeff Sessions, made the comments during a failed 2014 run for the Republican Senate nomination in Iowa.
“As a principle, it has been turned down by the courts and our federal government has not recognized it,” Whitaker said while taking questions during a September 2013 campaign speech. “Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?”
“The federal government’s done a very good job about tying goodies to our compliance with federal programs, whether it’s the Department of Education, whether it’s Obamacare with its generous Medicare and Medicaid dollars and the like,” he added. “But do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that.”
Whitaker added he didn’t think states had the “political courage to nullify Obamacare.”
The notion that states can do away with federal law has been at the heart of some of the country’s biggest conflicts.
’Nullification as a serious, mainstream legal argument didn’t survive the Civil War (or the constitutional amendments that followed),” said University of Texas law professor and CNN contributor Stephen Vladeck. “It’s irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause of Article VI—which not only makes federal law supreme, but expressly binds state courts to apply it. For someone who holds those views to be the nation’s chief law enforcement officer, even temporarily, is more than a little terrifying.”
Whitaker also said he believed that the courts were the inferior branch of the federal government, calling into question one of the most consequential rulings in Supreme Court history, Marbury vs. Madison, the 1803 case which established the power of federal courts to determine whether decisions or laws taken by by the President and Congress are constitutional.
“It is completely fraught with peril for 200 years of history and Marbury vs. Madison and the fact that the courts have become more powerful even though they’re supposed to be the inferior branch,” he added in the speech. “They have become more powerful than the other two branches because the other two branches lack political courage to stand up,” he said.
Whitaker made similar comments in support of nullification at an April 2014 Senate debate, where he again said states would need political courage to do it.
“Nullification? I think states could try to nullify,” Whitaker said. “But we have moved so beyond our constitutional framework that really the federalist system that was imagined, where the states created the federal government, I continue to be worried that we’ve moved so far beyond that the states are not willing to exercise that power for fear of what the federal government would do in response,” Whitaker said.
“But the federal government is smart. What have they done? They attach strength,” he added. “They don’t just pass a law and mandate a state does something. They say we really want you to expand Medicaid, for example, and then we put strings attached, that we’re going to pay for 95% or whatever the percentage – just pay a little bit. And so I think nullification would be a brave and bold political act of our state leaders. I don’t see that across the nation as I look at who we elect to statewide office.”
“Whitaker’s view of nullification is strictly political. That is, he would like it, politically, if States could disobey (nullify) federal law. As a legal matter, however, nullification finds no support in Constitutional law,” said Michael Zeldin, a CNN legal analyst. “Indeed, Whitaker himself acknowledges this … As acting Attorney General, I presume he will uphold federal legal principals.”
The issue of nullification has never been upheld in federal court and is criticized by constitutional scholars. Most famously, in the 1830s, South Carolina and its US senator, John C. Calhoun, sparked a national crisis by declaring void two federal tariffs. Congress then authorized President Andrew Jackson to collect the tariffs with force.
The conflict ended in 1833 with a compromise tariff and without any use of force. The issue of nullification gained traction with states’ resistance to federal government during the Civil Rights movement. The issue had a resurgence during the Obama administration, fueled by the so-called “Tenther” movement and organizations like the Tenth Amendment Center. Some state legislatures have passed non-binding resolutions asserting their sovereignty under the Tenth Amendment, including Alabama in 2010, a move that was praised by politicians, such as former Alabama Supreme Court chief Justice Roy Moore, who lost his bid to fill Sessions’ vacated US Senate seat in 2017.